BPP University College Of Professional Studies Limited (BPP)
This is for the Accelerated LPC, where Criminal Litigation accounts only for 30% of the overall Litigation mark. Received 94% in Criminal Litigation using these notes.
BPP University College Of Professional Studies Limited (BPP)
BPP University College Of Professional Studies Limited
Criminal Litigation
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LECTURE 1 – PCR
OVERVIEW + CONSOLIDATION
Things to note
IB 1.25 TP instructions, only act when client consents
Note whether or not another solicitor already instructed by sister
Outcome 5.1-2; do not deceive or knowingly/recklessly mislead court!
THEN IDENTIFY how they might not be met cite 5.9 IB eg calling W whose evidence you
know = untrue!
Do not add superfluous refs eg O1.1 or S24 CJPOA?
Rule 1 – ORO is an MCQ question at most.
IB 1.25 don’t need to take it as far as in PCR. Limited in how far you need to go. Third
party instructions bc come from somebody other than client
In exam, check if other firm wants to transfer the file.
TP instructions from someone other than client – unless satisfied that the person has authority to
do so; until you speak to client, won’t know whether he or she has already instructed another firm
cannot act unless other firm agrees
So ask client – you want me to act for you? Then get confirmation, and also make sure other
firm agrees
Identify issue
Why issue
What is solution or resolution?
O3.5 an actual risk etc. COI. Potential conflict – how to resolve it? Other client has to get their
own brief under 3.6!
Generally conflicting stories – answer is other arrested person to have separate solicitors so no
COI.
Exceptions effectively don’t apply in criminal context
O4.1 confidentiality. Need client’s consent even if their mom. So state issue, how to resolve,
action taken.
O 5.1 don’t mislead the court Perjury / call W they know is going to lie [my friend will happily
say he was with me at the time]
can’t call W whose evidence you know is untrue. Cease acting if client insists on calling
such a witness!
If someone changed his name, to avoid previous convictions becoming known, then you
need to tell the court otherwise you would be in breach of O 5.1
But if changed for a different purpose (eg changed long before got charged in
current proceedings)
Need not correct information given by prosecutor provided you do not indicate
agreement with that information [you would if eg you address on basis of client’s
good character remain silent on this matter then no breach of O 5.1]
ALL OFFENCES start in Magistrates’ Court. T offences can go to CC. I is ‘sent’.
1. Indictable offences – tried in crown court. ‘Either way offence is indictable offence’
2. Everything is ‘either way’ in this course – so it is all indictable (MC or CC).
S58 PACE – right to legal advice
Suspect has a right to consult the solicitor privately at any time within detention.
Solicitor’s role during interviewing is ACTIVE. Protect and advance client’s legal rights. Truth is
not the issue. You are just there to deal with procedural issues etc.
In exam – DOES NOT MATTER IF HE IS TELLING THE TRUTH IT IS FOR JURY TO DECIDE.
NO JUDGMENT.
Once a suspect is charged, either granted bail [attending court at a given time] or withhold bail + put in
custody
S38 PACE lays out grounds for no bail.
ECHR issues
, 1. Art 5 right to liberty and security
a. Relevant to bail, stop and search, unlawful arrest and detainment
b. Qualified right, can be derogated from.
2. Art 6 Right to a fair trial.
a. Relevant to all stages including his right to legal advice, procedural and evidential rules,
the principles applied during sentencing
Criminal PR comes into effect before the courts.
1. ‘Overriding objective’ Rule 1 – deal with cases justly
a. Justice to all involved, not just the defendant.
b. IMPORTANT TO KNOW ORO and effective case management
2. Rule 1.2 – all participants, including solicitors, must comply with the ORO
a. NB: practice note – no breach of confidentiality if indicate to court whether
instructions given but would be a breach to indicate what C’s instructions were.
Rule 3 on Case Management
3.2 sets out the court’s duty
o (a): early indication of real issues of dispute [eg alleging mistaken ID]
o (b): early indication of W needs
o (e): Ensuring evidence is presented in the shortest / clearest way
Eg: call on W so they can be prosecuted about his ID of the D
o (f): discouraging delay, avoiding unnecessary hearings
o (g): encouraging participant cooperation in progress of case
Trial may go ahead if D fails to attend
If CPS repeatedly fails to serve papers, case could be discharged
Rule 3.5 wide case management powers
o Plenty of directions it can give; including the standard directions
CPS must serve evidence within 28 days of NG plea
Defence must serve defence statement within 14 days
14 days extra for hearsay; 14 days for CPS to then make further
disclosure
o Rule 3.5(6) sets out possible sanctions if these directions are not complied with
Rule 3.6 can vary directions; Rule 3.7 – can vary time limit
PCR IMPACTS ON THE EXAM
P4 acting in client’s best interests but if there is a conflict between these duties, factor
determining precedence is public interest in administration of justice
Principle 1 – uphold the rule of law, administration of justice.
This overrides duty to client, without overriding confidentiality and legal professional
privilege
Chapter 1
Asked by relative or TP to represent someone at police station
O1.3: conflict of interest, money laundering
O1.4 Insufficient resources, skills, procedures
O1.5 lacking competence or too busy.
IBs must be sure that person has authority to give instructions IB 1.25
Call police station and ask to speak to the client himself – tell him TP instructed you to
call him. Don’t put more than necessary
Exam technique
Exam: Identify issue – TP instructions coming from someone other than the client
Why is this an issue? cannot act yet. IB 1.25: need authorization from client
What to do – go to police station, get confirmation from the client!
That’s it.
, Exam scenario: police may have already contacted duty solicitor if someone in the cell was
arrested overnight. This is TP question – get him to agree to transfer retainer to you!
Check they have instructed somebody else. Ask him who he wants to act for him –
me? Duty solicitor?
State that you can act provided other solicitor has agreed to it.
Someone might get arrested in the middle of the night bc that solicitor is on call – so then the
police call someone like the duty solicitor and he/she has to agree to transfer retain to you. This
is often tied up in a third party question if the client wants him to!
Check that they have instructed somebody else – then ask him if he wants him to act
or me etc. Other solicitor basically has to agree!
I can act provided other solicitor agrees to it!
PACE COP C annex B Paragraph 4 cannot delay solicitor access just bc someone else
besides D asked solicitor to go there; but D must consent.
Chapter 3 of Code Conflicts Check
O 3.5 Client Conflict but O 3.6 SCI
Where you cannot act in best interests of both clients unless exception applies
O 3.7 very irrelevant
IB 3.1 – training employees to identify / assess potential COI
IB 3.2 do not act for direct conflict clients
IB 3.5 even-handedness
Client conflict is relatively common in exam context
Conflict or risk of conflict between two or more current clients = must not act for all or both of
them, unless the matter falls within the scope of the limited exceptions set up at O 3..7
O 3.6 and O 3.7 NOT LIKELY TO APPLY IN CRIMINAL CONTEXT
Main issue is identifying conflict; don’t bother about exceptions
Confidentiality, disclosure issues
If 2 co-defendants are differing in their stories, then think about:
Can you act in best interests of both clients?
Check if they are blaming each other – blaming each other is CLEAR ROOT TO COI,
drop them!
Instructions that conflict [differing stories] also are COI
Cite relevant outcome. On the facts, if there is a risk, you cannot take instructions from
both clients.
Can you act for them wrt confidentiality and neither clients interests are prejudiced?
Consider duty of disclosure
Simply talk to C1 and ask whether he’s aware of conflict. Keep him aware.
Chapter 4 confidentiality
Applies EI retainer ended.
O 4.1 you and all people who work at firm must keep affairs of clients and former clients
confidential except where disclosure is required or permitted by law or by client or former client.
Eg get client’s consent to speak to his mum to get what’s going on
What’s issue, why is it issue [bc 4.1] – stage 3 whats answer? Just get client
consent – same formula!
IB 4.5
LPP keeping all clients info confidential – unless specific order from court or consent from client!
Advice privilege purpose of seeking advice from lawyer/ providing it to client
Litigation applies after litigation has started.
Ch 5 Duties to court [Os 5.1-5.8]
O 5.1 – never knowingly etc mislead court
O 5.2 includes being complicit or attempts
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